PRODUCE FIRM’S APPEAL

Sun (Auckland), Volume IV, Issue 1032, 24 July 1930, Page 11

PRODUCE FIRM’S APPEAL

DISPUTE OVER DELIVERY OF OATS COURT’S FINAL DECISION Press Association "WELLINGTON, Wednesday. Judgment in the case Wright, Stephenson and Company, Limited, v. the New Zealand Loan and Mercantile Agency Company, Limited, was delivered by the Court of Appeal this afternoon. Each of the four Judges comprising the Bench which heard the appeal delivered a judgment, but all were agreed that the appeal by the first-named company should be allowed. On the Bench were Justices Herdman, Reed, Adams and Ostler. The case concerned the purchase by the respondent company of 2,000 sacks of oats from the appellant, subject to the conditions laid down by the New Zealand Grain, Seed and Produce Merchants’ Federation, which, after delivery, were found not to be branded as prescribed by the conditions. The Chief Justice, Sir Michael Myers, gave judgment in October for the respondent for £5,315 6s 7d and £436 4s 5d costs, in a claim by it for the amounts paid to the appellant and various third parties for the oats. From this judgment the appeal was brought. Mr. Justice Herd man, in the course of his judgment, said: “The respondent company was tendered, or had delivered to it, all that it was entitled to get, and a claim founded on conversion cannot, in my judgment, succeed. “It remains to be considered whether the judgment of the court below in respect of the transaction, other than as concerns the 4,000 sacks already dealt with, can be sustained. The learned Chief Justice rejected, and I think rightly, the claim under which it was sought to make appellant liable upon the ground that it was the vendor of the various lots of oats, and he held that it was liable for damages as for conversion. With great respect. I must differ from him.

“If the principle enunciated in Parsons v. the New Zealand Shipping Company is sound and has been applied by me correctly, then my decision must be that the respondent was not entitled to succeed in the court below and the present appeal must be allowed. The appeal will be allowed, with costs on the highest scale.” NO CONVERSION Mr. Justice Reed held, for the reason stated in his judgment, that the basic submission failed, for there was no representation, expressed or implied, that each sack was to be branded or marked. There was therefore no estoppel, and as it had been proved that the oats delivered were the same oats as were referred to in the store warrant, there was no conversion. For the same reasons there was no conversion of oats in the second series of transactions. Mr. Justice Adams held that there was neither ground nor necessity for the imputation of a new contract. An effective conditional appropriation was made prior to delivery of the documents. by which the parties were bound, and the tender of the goods in their then condition was a good tender The oats tendered were the identical oats appropriated and were in the same sacks and marked in the same way as on February 28. 1929, when deli very was tendered. The tender was therefore in strict accordance with the contract. His Honour also held that the fact that in the store warrants and grade certificate it was stated that the sacks bore certain marks was immaterial, and. further, that the appellant was not stopped from asserting that oats not branded or marked as stated in the store warrant were in fact appropriated to the contract. His Honour also held that the second series of transactions should suffer the same fate as the first. Mr. Justice Ostler held that respondent company had no claim at all against the appellant, unless it could show that there was any difference in value betwen the 4.000 sacks of oats tendered without brands, and their value if they had all been branded. Such a claim would of course be absurd. The appeal accordingly would be allowed, with costs on the highest scale in this court, and costs in the court below to appellant company, with disbursements and witnesses’ expenses, to be’ fixed by the registrar. At the hearing Mr. H. F. O’Leary and Mr. Evans appeared for appellant, and Mr. A. Gray, K.C„ and Mr. Treadwell for respondent.